terms and conditions aforesaid, the builders shall, in exchange for the purchase money due to them up to and including delivery instalment, and for a bank guarantee for the final instalment" hand over to the purchasers the usual certificates.

Art. 10 provided that the purchasers should be entitled to appoint an expert to superintend the construction of the vessels and machinery, and art. 11 that the vessels should be at risk of the builders until they left Greenock, up to which date the builders should keep them insured.

The contract further provided that the price of each of the said steamers should be payable in cash instalments at certain stages of their construction-viz., when the contract was signed, when the keel was laid, when the vessels were framed, when plated, when launched, when handed over after steam trials at Greenock, and the final instalment six months after delivery to owners at Genoa.

The Italian company duly appointed a representative, under whose supervision and inspection the construction of the vessels was to be and was being carried out. They had further made payment to the respondents of the instalments as they became due. Five or six of the instalments had been paid on ship No. 468; three or four on ship No. 469. The amount of such instalments was about 221,000l.

66

J. Avon Clyde, K.C. (of the Scotch Bar), F. E. Smith, and J. Macgregor (of the Scotch Bar) appeared for the appellants, and contended that by Scotch law on the sale of a corporeal immov. able to which something more had to be done by the vendor-i.e., a sale with an "executory clause -the property passed to the purchaser to the extent to which the article was completed. (See Bell's Principles of Scotch Law, sects. 1303, 1328). The Sale of Goods Act 1893 (56 & 57 Vict. c. 71) leaves the common law as to executory contracts intact. See sect. 62, which defines specific goods. Here the ship was not in existence when the contract was made, and therefore it could not be specific goods" within sect. 18 of the Act. Sect. 6 relates to the sale of unascertained goods, and an unbuilt ship must be "unascertained." A contract to build a ship cannot be a contract for the sale of ascertained goods. See Seath v. Moore (5 Asp. Mar. Law Cas. 586 (1886); 54 L. T. Rep. 690; 11 App. Cas. 350), which was a case decided before the Act, in which it was held that a mere agreement to transfer was ineffectual. [The LORD CHANCELLOR.-Does it not come to a question of intention? What did the contract really mean?] Here by the contract the parties intended the property to pass on payment of the instalments, and there was a constructive delivery, or, if not, sect. 18, r. 5, of the Act of 1893 applies. See McBain v. Wallace (45 L. T. Rep. 261; 6 App. Cas. 588) as to reputed ownership, per Lord Selborne, L.C., citing Holderness v. Rankin (2 De G. F. & J. 258; 29 L. J. 753, Ch.). See also Reid v. Macbeth and Gray (90 L. T. Rep. 422; (1904) A. C. 223) and the earlier Scotch cases, Simson v. Duncanson (Mor. Dict. 14,204, and note to 6 App. Cas. 598 and 11 App. Cas. 362), Wylie and Lochead v. Mitchell (8 Macph. 552), Orr's Trustees v. Tullis (8 Macph. 936), and Spencer and Co. v. Dobie and Co. (7 R. 396). The property passed as the instalments were paid, and the Act of 1893 has not altered the old common

law of Scotland. The clear intention of the parties was that the property should pass to guard against the possible insolvency of the builder. Clark v. Spence (4 A. & E. 448; 43 R. R. 395) was a very similar case. See also the English decisions in Woods v. Russell (5 B. & Ald. 942; 24 R. R. 621), Atkinson v. Bell (8 B. & C. 277), Laidler v. Burlinson (2 M. &. W. 602; 44 R. R. 717), and Wood v. Bell (5 E. & B. 772; on appeal, 6 E. & B. 355), which are discussed in Benjamin on Sale, 4th edit., p. 293 et seq.

Scott-Dickson, K.C. and D. P. Fleming (both of the Scotch Bar), who appeared for the respondents, were not called on to address their Lordships.

At the conclusion of the argument for the appellants their Lordships gave judgment as follows:

The LORD CHANCELLOR (Loreburn).-My Lords: It is not necessary to trouble counsel for the respondents. The question is as to whether the property has passed, and whether the parties intended by their contract that it should pass. I must say that I do not know that any conclusive use can be made of the comparison of the language of a contract and the language that is used in regard to other contracts in judgments. I have always myself some misgivings when presumptions of fact that is to say, presumptions in regard to the interpretation that is to be put upon particular words in a contract apart from their natural signification-are put forward. They may be of great use of a kind and to a certain degree, but, after all, the question is what the contract says that the parties intended to do. The facts referred to by Mr. Clyde and Mr. Smith -namely, that this ship was to be paid for by instalments, and that there were powers of inspection on the part of the purchaser-may be marks or badges pointing to the property passing, but there is nothing conclusive, and the question still remains as to what they meant. I think that the contract was for a complete ship, which was to remain with the builder until delivery, and that there was no intention to make delivery or pass the property until the ship was completed. Under these circumstances I consider that the appeal should be dismissed.

The Earl of HALSBURY.-My Lords: I am of the same opinion. A contract might no doubt have been framed which would have given to the purchasers the property in the parts of the ship as they were successively finished; but that is not the case here. I also have misgivings with respect to the use of the word "presumption " in connection with a contract the language of which has to be construed. What your Lordships have to do is to interpret the contract as it is brought before you, and it appears to me to be a contract for a completed ship.

Lords MACNAGHTEN and JAMES of Hereford concurred.

Lord ROBERTSON.-My Lords: The question in the present appeal seems to me to be governed by the Sale of Goods Act 1893, and by that statute to be determinable by the intention of the instrument under which the ship was built. In aid and supplement of construction the statute supplies certain rules, but these rules may or may not come into operation according as

the contract requires it. In the present case I find the contract to require no aid or supplement from the statutory rules, for it seems to me to provide from the beginning for the com. pletion of this ship by the shipbuilders with their materials, and transfers it to the purchasers only as a finished ship, and at a stage not yet reached. This is a simple view of the matter, but in my judgment it is the sound one. It treats the Sale of Goods Act as superseding the previous law, and if in some instances it may be found necessary to revive and reconstruct the old common law for purposes of consideration, I can only say that that occasion has not yet come. I therefore concur in the conclusion of the Court of Session, which rests on the contract. It seems right, however, to say that this does not imply concurrence in all that is said by way of statement of doctrine in the judgments of the learned Lords. Some of them seem open to exception, or at least criticism, but the judgment of the learned judges does not seem to have been at least minutely considered. Among matters of omission I think that the fifth head of the 18th section of the Act is so directly applicable that it required perhaps more attention than it received. But I do not require to enter on those disputable matters, as the grounds of judgment which your Lordships adopt are common to us and to their Lordships of the First Division.

Lord ATKINSON concurred.

Judgment appealed from affirmed, and appeal dismissed with costs.

Solicitors for the appellants, Pritchard, Englefield, and Co., for Steedman, Ramage and Co., Edinburgh.

Solicitors for the respondents, Burchells, for H. B. and F. J. Dewar, Edinburgh, and Montgomerie and Fleming, Glasgow.

Supreme Court of Judicature.

COURT OF APPEAL.

Oct. 22 and 23, 1907.

(Before Lord ALVERSTONE, C.J., BUCKLEY and KENNEDY, L.JJ., and Nautical Assessors.) THE GUILDHALL. (a) Collision-Risk of collision-Steam vessels meeting in the Thames-Duty to port-Art. 46 of the Thames By-laws 1898.

Two steam vessels were meeting in the Thames a little above Cuckold's Point. The steam vessel coming up the river sighted the other steam vessel with her starboard side open to them, about 400 yards off and half a point on their starboard bow. The steam vessel coming up the river kept a starboard helm and sounded two short blasts on her whistle, which the other vessel, as she was porting her helm, replied to with one; whereupon the engines of the vessel coming up stream were immediately reversed and three short blasts were sounded on her whistle, and, (a) Reported by L. F. C. DARBY, Esq, Barrister-at-Law VOL. X., N. S.

[CT. OF APP.

although the engines of the down coming steam vessel were also reversed and a three-blast signal was sounded on her whistle, a collision occurred. Held, by the Court of Appeal varying the decision of the court below, that art. 46 of the Thames By-laws applied, and that the steamers ought to have passed port side to port side.

Held, further, by Buckley, L.J.: Risk of collision is a question of opinion rather than a question of fact, and does not mean that an accident presumably will happen, but that the circum stances are such that precautions ought to be taken to preclude the possibility of danger resulting.

DAMAGE ACTION.

The appellants, who were the plaintiffs in the court below, were the General Steam Navigation Company Limited, the owners of the steamship Leeuwarden; the respondents, who were the defendants in the court below, and counterclaimed for damage done to their vessel, were the owners of the steamship Guildhall.

The collision which gave rise to the action occurred about 11.57 a.m. on the 16th Dec. 1906, in the river Thames a little above Cuckold's Point. The wind at the the time was south-west, a light air, the weather was hazy and the tide flood, of the force of about two knots.

The case made by the appellants (plaintiffs in the court below) was that shortly before 11.55 a.m. on the 16th Dec. 1906 the Leeuwarden, a steel screw steamship of 990 tons gross and 374 tons net register, 230ft. long, manned by a crew of seventeen hands all told, was, whilst on a voyage from London to Harlingen with a general cargo, going down the river Thames to the south of mid-channel. The Leeuwarden was on a downriver course to round the bend of the Lower Pool, and was making about two to three knots over the ground. A good look out was being kept on board of her.

The

In these circumstances those on the Leeuwarden first noticed the Guildhall with a tug in attendance about 500 yards off and about ahead. Just about this time the helm of the Leeuwarden was a-port and her engines stopped to pass to the south of a dumb barge, so one short blast was sounded on her whistle, her engines put on slow, and her helm ported a little more. Guildhall replied with one short blast, but seemed to act as if under starboard helm, though her tug was towing to the northward, whereupon the engines of the Leeuwarden were put full speed astern, and three short blasts were sounded twice on her whistle, but the Guildhall came on, also blowing three blasts, and with her stem struck the Leeuwarden on the port bow, doing damage.

Those on the Leeuwarden charged those on the Guildhall with not keeping a good look-out, with sounding misleading signals, with negligently starboarding, with neglecting to pass the Leeuwarden port to port, with neglecting to slacken their speed and stop and reverse in due time or at all, and with breach of art. 46 of the Thames Rules.

The case made by the respondents (defendants in the court below) was that shortly before 11.57 a.m. on the 16th Dec. the Guildhall, a screw steamship of 2609 tons gross and 1659 tons net register, fitted with engines of 250 horse 4 F

CT. OF APP.]

power nominal, was proceeding up the river Thames in charge of a duly licensed Trinity House pilot, on a voyage from Bussorah to London, with two passengers and a general cargo, manned by a crew of twenty-six hands all told. The Guildhall was rounding Cuckold's Point under starboard helm with the tug Challenge in attendance, and was making about a knot through the water with her engines stopped, and a good look-out was being kept on board the Guildhall and on her tug. In these circumstances those on the Guildhall observed the Leeuwarden distant about a quarter of a mile with her starboard side open to them, and bearing a little on the starboard bow. When the Leeuwarden was seen two short blasts were sounded on the whistle of the Guildhall, and her helm was kept a-starboard, and afterwards steadied. Shortly afterwards the Leeuwarden sounded one short blast. engines of the Guildhall were immediately put full speed astern, and three short blasts were blown on her whistle. The Leeuwarden answered with three short blasts; but coming on at an excessive speed under port helm struck with her stem the stern of the Guildhall, doing her great damage.

The

Those on the Guildhall charged those on the Leeuwarden with not keeping a good lookout, with proceeding at an excessive and improper speed, with improperly porting, and with neglecting to slacken her speed or stop or

reverse.

Alternatively, the defendants pleaded that the Guildhall was in charge of a duly qualified pilot, within a district where the employment of such pilot was compulsory by law, and that if and so far as the collision was caused or contributed to by any negligence of anyone on board the Guildhall, the negligence was that of the pilot, for whose fault the defendants were not answerable.

Art. 46 of the Thames By-laws is as follows:

46. When two steam vessels or steam launches, proceeding in opposite directions, the one up and the other down the river, are approaching each other so as to involve risk of collision, they shall pass port side to port side.

Aspinall, K.C. and Bateson appeared for the plaintiffs.

Laing, K.C. and Dawson Miller appeared for the defendants.

May 13-BUCKNILL, J.-This is a case of a collision between the steamship Leeuwarden, the property of the General Steamship Navigation Company, and the defendants' steamship the Guildhall, which took place off, or about off, Cuckolds Point in the river Thames about noon on the 16th Dec. 1906. The Leeuwarden is a steamship of 990 tons gross, and she was bound from London to Harlingen. The Guildhall is a screw steamship of 2600 tons gross, and she was bound up the river in charge of a duly licensed Trinity House pilot from Bussorah to London, and she had two passengers on board. The case for the plaintiffs is shortly this: That they were proceeding down, to the south of mid-channel, withal, and had manœuvred for barges which were to the southward of mid-channel, and, having passed very close to one of them, were still proceeding down at a moderate speed; that the Guildhall was then seen to the northward of

[CT. OF APP. mid-channel, about 500 yards away, and nearly ahead; that the Leeuwarden then sounded one short blast, as a port helm signal, ported her helm and put her engines slow ahead, they having been stopped shortly before; that the Guildhall then blew one short blast signal, but was then seen to be acting under a starboard helm, whereupon the engines of the Leeuwarden were reversed full speed and three short blasts were sounded on her whistle, and shortly after that the collision happened. Her witnesses said that her first reversing signal was not answered by those on board the Guildhall, so another reversing signal was given, and then the Guildhall gave three blasts in reply. The story told by the witnesses from the Guildhall is that they were bound up river and were coming up about mid-channel, or slightly to the southward withal; that the Guildhall bad, shortly before seeing the Leeuwarden, acted for a down coming steamer by giving her a starboard helm signal, and that those two steamers had passed starboard side to starboard side; that the Guildhall never got to the north of mid-channel; that she was passing up slowly with a tug in attendance, which tug was not at the time towing at her; that those on board the Guildhall were anxious about her, considering her draught, coupled with the fact that she was going to turn round shortly afterwards under the port helm, and she was therefore never at that time to the northward of mid-channel. Then it is said that the Leeuwarden was reported by the look-out. I may say at once that I find that a good look-out was kept on board the Guildhall, and that the Leeuwarden was reported to the pilot and that the pilot saw her, the Leeuwarden, bearing then about half a point on the Guildhall's starboard bow, and about a quarter of a mile distant; but, whatever the exact bearing was, the starboard side of the Leeuwarden was visible to those on board the Guildhall. The Guildhall then gave two short blasts and the Leeuwarden replied with one, exactly the opposite of the story told by the Leeuwarden, which is that the Leeuwarden gave one short blast first. The Guildhall then says, having given those two short blasts, which the Leeuwarden answered with one and indicating that she was proceeding under a port helm, that the engines of the Guildhall were immediately reversed and three blasts of the whistle were sounded; but the Leeuwarden, coming on very fast, struck the Guildhall with her stem, doing considerable damage. Now, I have to find the facts, and the first fact I find is that the witnesses on board the Guildhall are telling the truth when they say she was about in mid-channel, or a little bit to the southward withal, coming up under a steady starboard helm, and that they had passed a down-coming steamer starboard side to starboard side, and had passed safely, and that the Guildhall was still acting under a slight starboard helm when the Leeuwarden was reported. I also find as a fact that the Guildhall was the one that gave the helm signal first; and I find as a fact that she did not blow a port helm signal at all, but blew two short blasts. She was then coming round the bend under a starboard helm, and she may have starboarded-but I do not say that she had-for the other down-coming steamer, but she was and had been for some time before the Leeuwarden was seen coming round under a

66

CT. OF APP.]

66

Now,

starboard and steady starboard helm. I find as a fact also that those on board the Guildhall saw the Leeuwarden slightly on her starboard bow, and showing her starboard side, and it is to that fact, that those on board the Guildhall saw the starboard side of the Leeuwarden, that the court attaches very much importance. That being so, it follows that I cannot accept the story told by those on board the Leeuwarden. I cannot accept the story told by the Leeuwarden that she was to the southward of mid-channel, and that the Guildhall was on her port bow, nor can I accept the story about the helm signals, that the Guildhall blew one short blast and yet acted as if under a starboard helm. I find also that the Leeuwarden was going faster at the time of the collision than it was alleged she was. I do not find that she was going down the river at too great a rate of speed because she had a two-and-a-half knot tide against her, and the speed at which she was going, supposing it was five knots, represents only two and a half over the ground. I cannot accept her story with regard to the helm signals, and I cannot accept her story of the place of collision with regard to mid-channel. having found those facts, I have asked the Elder Brethren certain questions. I have asked them, Assuming that the Leeuwarden was showing her starboard side to the Guildhall, was the Leeuwarden justified in the circumstances in porting ?" The answer is, " No, she was not." I have asked them this other question: "Supposing the Leeuwarden had done nothing except to proceed down under a steady helm on a steady down-river course, when she was showing her starboard side to the upcoming ship, would there have been any collision at all, on the supposition, as I have found it, that the Guildhall was then acting under a steady starboard helm ?" The answer is: "No; there would not have been a collision, and the down-coming steamer would have passed safely starboard side to starboard side to the Guildhall, as, indeed, the one which preceded her had, in fact, done." That being so, it follows that this collision was not caused by anything that was done on board the up-coming steamer, but that it was caused by the Leeuwarden improperly porting her helm. Now, in confirmation of that opinion, which is given to me by the Elder Brethren, I have this fact. I put this question myself to the master of the down-coming steamer. I said: "But do you mean to tell me, if the story of the Guildhall is correct, that if you were slightly on her starboard bow you would still have ported your helm ?" He said, "Yes, I should." Then I said, "Although she was starboarding her helm and giving you a starboard helm signal?" And he answered," Yes, I should." That shows that the captain was acting under what I call a delusion, or an obstinate determination in certain cases to port the helm, and that if you port your helm you cannot be wrong; but you may well be wrong, and I find, as a last fact, that at the time when the down-coming steamer ported her helm the two ships, being in the relative positions which I have found, were not proceeding so as to involve risk of collision, and, therefore, that the Thames rule as to porting did not apply. I think I have covered the whole ground; and my judgment is that the plaintiff ship the Leeuwarden is alone to blame.

[CT. OF APP.

On the 6th June 1907 the plaintiffs delivered a notice of appeal asking that the decision of Bucknill, J. might be reversed, and that it might be pronounced that the collision was solely occasioned by the fault or default of the owners, master, and crew of the steamship Guildhall, and that the defendants' counter claim might be dismissed and the plaintiffs' claim for damages be pronounced for, and the defendants be condemned in such damages and in the costs of the proceedings in the court below and on the appeal.

Aspinall, K.C. and A. D. Bateson for the appellants.-The Leeuwarden was justified in porting; she had to round the point, and would naturally keep on her starboard side of the river. Rule 46 of the Thames Rules applies, for risk of collision existed even though the vessels were starboard to starboard, as found by the learned judge:

The Odessa, 46 L. T. Rep. 77; 4 Asp. Mar. Law
Cas. 493.

Both the vessels should have ported. By following the rule each vessel takes the same action, viz., ports. The Guildhall should have kept to her starboard side of the channel. [Lord ALVERSTONE, C.J.-Where there is no starboard hand rule, may not a vessel navigate on either side of a river? The Ecossaise, Shipping Gazette, Dec. 15, 1885.] Possibly; but here you have two vessels meeting near a bend; the navigation is difficult, for the river is narrow; and, in view of r. 46, it would have been prudent for the Guildhall to keep on her starboard side of the channel. The plea of compulsory pilotage should fail, as the pilot did receive the assistance he was entitled to from the

crew.

Laing, K.C. and Dawson Miller for the respondents. The learned judge in the court below did not accept the story told by the Leeuwarden, and has found the vessels were meeting starboard to starboard, and in such a way that they would have passed all clear if the Leeuwarden had kept on a steady down river course. That being so, The Odessa (ubi sup.) has no application, for the rule is not that every vessel meeting another is to port, but only when vessels are meeting so as to involve risk of collision. The provisions of r. 46 are not the same as the provisions of the rule in the case of The Cleopatra (Swabey 135). In any event, the owners of the Guildhall are not to blame for the collision, the fault on their vessel being the fault of the pilot, and he received all the assistance it was possible to give him.

Lord ALVERSTONE, C.J.-This case has given me a very great deal of difficulty, and, but for the fact that I think it very important that I should give judgment while I have a very clear recollection of the arguments and the facts, and but, also, for the fact that it seems to me we have to deal with a very broad principle in this case, should have liked further to consider the matter. I have been very much impressed in favour of the respondents with the recollection and reflection that the appellants took into court a case which the judge has wholly disbelieved. They said a port helm signal was given from the Guildhall; they said her helm was all wrong, and she would not steer, and they put themselves far away over to the south. Some of their witnesses stated that they were as much as half

way between mid-channel and the south shore. I can quite understand the learned judge, in deciding as he did against the Leeuwarden, was very much influenced, as I am sure I should have been influenced, by the fact that the case which was made by the Leeuwarden had broken down hopelessly in many respects. Now we are face to face with the application of art. 46, the old rule 22, in a part of the river where its operation has not had to be directly considered before, where there is a narrow waterway. There are influences of tide in one way or the other-in this case a flood tide-underneath a ship going up, and, of course, craft which may or may not impede the navigation of one vessel or the other. We have to say what are the duties of the two ships when they are navigating in such a part of the river as that, and what are their obligations, having regard to the directions of art. 46. Now, at one time it seemed to me, listening to the arguments of counsel for the respondents, that a short answer to this appeal might be given upon the ground that the learned judge had held that at a distance of, roughly, 400 yards or thereabouts, when these vessels sighted one another, at any rate, from the point of view of manoeuvring for one another, the Leeuwarden had so navigated herself, or was so navigated, having regard to what she had done before, that she brought herself showing her starboard side upon the starboard bow of the Guildhall; and that being so, to take the learned judge's language, "in the relative positions in which they then were proceeding, they were not proceeding so as to involve risk of collision." I do not overlook the fact that he had said the Leeuwarden was bearing about half a point on the Guildhall's starboard bow, and about a quarter of a mile distant. I confess I should have had a good deal of difficulty, examining the evidence, in finding she had ever got so broad as that, but I assume for the moment that that was what the

learned judge's opinion was. The Guildhall was

in about mid-channel or a little bit to the southward withal, coming up under a steady starboard helm," and "the Guildhall saw the Leeuwarden slightly on her starboard bow, and showing her starboard side.' I think counsel for the respondents did satisfy me that in putting the question which he did to the Elder Brethren it must be assumed the learned judge had told them, or they would know, that the Leeuwarden was showing her starboard side to the Guildhall a little on the starboard bow of the Guildhall. If that explanation is not given it is extremely difficult, of course, to reconcile the way in which the question was put to the Elder Brethren. If I had not been convinced that there were other considerations to be dealt with in this case, and that we had perhaps to look at the matter from a slightly different standpoint, it would have satisfied me to have affirmed this decision upon the ground that the learned judge had found that at a distance of 400 yards these two vessels were proceeding upon concentric circles, one under starboard and the other under port helm, that the circle in which the Guildhall was going was well inside the circle in which the Leeuwarden was going, and therefore there was no risk of collision. But, after the consideration I have given to this case from the time I have understood it, after very anxious consideration, it

[CT. OF APP.

seems to me both upon principle and authority, that would be too dangerous a view to adopt. I am not going to deal with this question and to differ from the learned judge upon the ground that he did not put the fact that the Leeuwarden was upon the starboard side of the Guildhall in that question to the Elder Brethren. But, of course, it really goes without saying, because the learned counsel are agreed that, if the real question which he considered was whether the Leeuwarden was showing her starboard side to the Guildhall independently of the position of the Leeuwarden on the starboard side of the Guildhall, he would certainly not have considered the proper question. Therefore I do not assume that he only regarded the Leeuwarden showing her starboard side to the Guildhall.

We are advised by our assessors, and, so far as a landsman may, it seems to me I should concur with the view, at any rate if we apply the principles of certain decisions we are advised that, even taking the Guildhall to have got the Leeuwarden slightly, or fine, or a quarter of a point, which I think is the outside at which it can be put, upon her starboard bow, they were still approaching round such a point as this as to involve risk of collision. That is the advice given us by our assessors, and I certainly see no reason, so far as I am entitled to express any opinion, to differ from it. It does seem to me, if the rule means anything, we have got to apply it in a case in which the total waterway is said to be but 600ft. wide. You have got the question of what may be the effect of tide setting vessels over the one way or the other, the effect of difficulties of navigation which may prevent there being the clear concentric circles to which reference has been made; and certainly it does not seem to be suggested in this case that there is any obstruction on the north side of the river to prevent the Guildhall having gone up to the starboard side of mid-channel-that is, acting under her port helm. We have to consider whether or not there is any authority that would justify us in coming to the conclusion that, if the Leeuwarden had gone slightly upon the starboard bow of the Guildhall, we ought still to hold that there is no risk of collision in the face of the advice given to us by our assessors that the vessels were approaching so as to involve risk of collision, and the duty of each one of them was to port. So far as there is any authority it certainly tells the other way. The case of The Odessa (46 L. T. Rep. 77; 4 Asp. Mar. Law Cas. 493), which has been admitted by counsel for the respondents to be a difficulty in his way, is a case in the Court of Appeal. Counsel for the respondents has said it is treated with something like contempt in the Admiralty Court whenever it is cited, and he rather attributed to me a certain part of the blame because I had something to do in a humble way with the case in the court below. But we have to look at what was said by the learned judges dealing with a case in which the vessels were approaching green to green. If we had been advised that the fact that this was a daylight collision and the vessels could so clearly see their relative positions in the channel as to make The Odessa (ubi sup.) not an authority which had to be considered from a legal and navigation point of view, different considerations might have arisen. But accepting, as I am